643 F.2d 585 (9th Cir. 1981), 78-1526, Columbia Basin Land Protection Ass'n v. Schlesinger

Docket Nº:78-1526, 78-1588 and 78-3311.
Citation:643 F.2d 585
Party Name:Envtl. COLUMBIA BASIN LAND PROTECTION ASSOCIATION, etc., et al., Plaintiffs-Appellees, and South Columbia Basin Irrigation District, Plaintiff-Intervenor, v. James R. SCHLESINGER, etc., et al., Defendants-Appellants. COLUMBIA BASIN LAND PROTECTION ASSOCIATION, etc., et al., Plaintiffs-Appellees, and South Columbia Basin Irrigation District, Plainti
Case Date:April 20, 1981
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 585

643 F.2d 585 (9th Cir. 1981)

Envtl.

COLUMBIA BASIN LAND PROTECTION ASSOCIATION, etc., et al.,

Plaintiffs-Appellees,

and

South Columbia Basin Irrigation District, Plaintiff-Intervenor,

v.

James R. SCHLESINGER, etc., et al., Defendants-Appellants.

COLUMBIA BASIN LAND PROTECTION ASSOCIATION, etc., et al.,

Plaintiffs-Appellees,

and

South Columbia Basin Irrigation District, Plaintiff-Intervenor,

v.

James R. SCHLESINGER, etc., et al., Defendants-Appellees.

COLUMBIA BASIN LAND PROTECTION ASSOCIATION, etc., et al., Plaintiffs,

and

South Columbia Basin Irrigation District, Plaintiff-Intervenor,

and

State of Washington and Franklin County,

Plaintiffs-Intervenors-Appellants,

v.

James SCHLESIGNER, etc., et al., Defendants-Appellees.

Nos. 78-1526, 78-1588 and 78-3311.

United States Court of Appeals, Ninth Circuit

April 20, 1981

Argued and Submitted July 1, 1980.

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Dale L. Kingman, Thom, Navoni, Mussehl, Hoff, Pierson & Ryder, Seattle, Wash., on brief; Ronda L. Sandquist, Helena, Mont., argued, for Schlesinger.

C. J. Rabideau, Pasco, Wash., Robert M. Sweeney, Asst. U.S. Atty., Spokane, Wash., Thomas L. Bjorgen, Asst. Atty. Gen., Olympia, Wash., for Columbia Basin Land, et al. and intervenors.

Appeal from the United States District Court for the Eastern District of Washington.

Before ELY and NELSON, Circuit Judges, and KARLTON, [*] District Judge.

Page 590

NELSON, Circuit Judge:

Appellants (an association of farmers in Franklin County, Washington, hereinafter Landowners) sued the Bonneville Power Administration (BPA), an agency within the Department of the Interior, to enjoin the construction of a 500 kilovolt power transmission line across their lands. The district court denied them the injunction, and the Landowners now bring this appeal. All 191 towers required for the line have been erected and the line has been in operation since 1978.

Numerous flaws in the proceedings are alleged by the Landowners. The major issues concern whether the Environmental Impact Statement (EIS) prepared by the BPA on the proposed power line was in conformance with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4335 (1976). We hold that the EIS adequately complied with the provisions of NEPA.

Aside from the alleged procedural defects, the Landowners challenge the decision to build along the chosen route as a substantive matter. We hold, however, that the BPA's decision was not arbitrary and capricious but was based on legitimate economic considerations reflected in the EIS.

Further, the Landowners claim that the Memoranda of Understanding between the Bureau of Land Management (BLM) and the BPA, and the Bureau of Reclamation (BR) and the BPA should have been the subject of an EIS separate from that made by the BPA for the project as a whole. We reject this argument and hold that a separate EIS for the Memoranda of Understanding is not required under NEPA.

The Landowners also raise a number of issues based on the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701-1782 (1976). Under the facts of this case, however, we find that the BLM and the BPA sufficiently fulfilled the obligations of §§ 503 and 505. Therefore, the permit as issued is valid.

The Landowners also claim that the BLM should have required a FLPMA right-of-way permit for privately held lands in which the United States has retained mineral rights and over which the power line crosses. We reject this argument and hold that these lands are not subject to FLPMA's right-of-way requirements.

Intervenors argue that the FLPMA right-of-way permit issued by the BLM to the BPA obligates the BPA to comply with the substantive standards and the procedures of Washington's Energy Facility Siting Act, and with Franklin County's land use regulations. We hold that the BPA is required to meet the substantive standards of Washington's siting act, but reject the Intervenors' other contentions.

Finally, on cross appeal, the Government contends that the district court incorrectly interpreted FLPMA to require the BPA to obtain a right-of-way permit from the BR. We agree. FLPMA's right-of-way provisions apply to "public lands" administered by the BLM and to national forest lands under the jurisdiction of the Secretary of Agriculture, but do not apply to the BR.

I

STATEMENT OF FACTS

Appellant farmers (Landowners) filed suit in 1976 to enjoin the construction of a power line over their lands. The original suit sought to stop construction of the line because the environmental impact statement (EIS) failed to meet the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4335 (1976). The EIS prepared by the Bonneville Power Administration (BPA) discusses five alternate routes for the Lower Monumental-Ashe power line. The route selected (Route D-1) is forty-one miles long, crosses approximately twelve miles of irrigated land and eighteen miles of dryland being farmed. Some of the eighteen miles of dryland are scheduled to be irrigated under development of the Columbia Basin Project. Construction costs were estimated at $14.4 million. The Landowners argue

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that the power line should have been built along Route E, which is fifty-one miles long and crosses predominately grazing land, one mile of dryland and only two miles of irrigated cropland. Construction costs for this route were estimated at $17.2 million. Landowners' request for a preliminary injunction was denied on the ground that they were unlikely to succeed on the merits of the claim. Columbia Basin Land Protection Association v. Kleppe, 417 F.Supp. 46, 53 (E.D.Wash.1976).

The Landowners then amended the complaint to raise additional defects in the administrative process of locating the transmission line and moved for a permanent injunction against further construction. The district court rejected most of their claims on the merits. The court did, however, issue a temporary injunction on the narrow ground that, as to the publicly owned, federally controlled lands over which the power line right-of-way must pass, the BPA was required to obtain permits for rights-of-way from the Bureau of Land Management (BLM) and the Bureau of Reclamation (BR). The district court subsequently dissolved the injunction on the ground that the BPA had obtained the necessary permits from the BLM and the BR. Further efforts by the Landowners and by Intervenors, the State of Washington and Franklin County, to restore the injunction pending appeal were rejected by the district court and by this court. All 191 towers required for the line have been erected and the line has been in operation since 1978. 1

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II

ISSUES PRESENTED

A. Was the EIS filed by the BPA concerning the proposed power line construction adequate according to procedures set forth in the National Environmental Policy Act?

B. Was the decision of the BPA to build a power line along Route D-1 arbitrary and capricious?

C. Did the Memoranda of Understanding between the BPA, the BLM, and the BR require the preparation of a separate EIS?

D. Was the permit issued by the BLM to the BPA in conformity with the Federal Land Policy and Management Act of 1976?

E. Must the BPA comply with the standards of the Washington State Energy Facility Siting Act and the Franklin County Comprehensive Plan, and receive a certificate from the Governor of Washington?

Issue on Cross Appeal

F. Was the BPA required to obtain a FLPMA right-of-way permit from the BR before proceeding with the transmission line?

III

DISCUSSION

  1. Adequacy of the EIS

    1. Standard of Review

      The purpose of NEPA is to assure that federal agencies are fully aware of the present and future environmental impact of their decisions. Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir. 1974) (en banc). Additionally, the preparation of an EIS ensures that other officials, Congress, and the public can evaluate the environmental consequences independently. As this court stated in Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir. 1974):

      (A)n EIS is in compliance with NEPA when its form, content, and preparation substantially (1) provide decision-makers with an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in the light of its environmental consequences, and (2) make available to the public, information of the proposed project's environmental impact and encourage public participation in the development of that information.

      Id. at 1283. The appropriate standard of review of the adequacy of the EIS, set forth in § 706(2)(D) of the Administrative Procedure Act, is whether the EIS was prepared "without observance of procedure required by law." 5 U.S.C. § 706(2)(D) (1976). See Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 781 (9th Cir. 1980); Trout Unlimited, 509 F.2d at 1282; Lathan, 506 F.2d at 692-93. A court is not to substitute its judgment for that of the agency as to the environmental consequences of its action. Rather, this court's role is to ensure that the agency has taken a "hard look" at environmental consequences. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 96 S.Ct. 2718, 2730 n.21, 49 L.Ed.2d 576 (1976). Moreover, "the test of EIS adequacy is pragmatic and the document will be examined to see if there has been a good faith attempt to identify and to discuss all foreseeable environmental consequences." Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 552 (9th Cir. 1977) (per...

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